[2022] KEHC 16818 (KLR)

Vapco Construction Company Ltd v Sheheena Enterprises Limited (Civil Suit 19 of 2021) [2022] KEHC 16818 (KLR) (16 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16818 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Suit 19 of 2021

OA Sewe, J

December 16, 2022

Between

Vapco Construction Company Ltd

Plaintiff

and

Sheheena Enterprises Limited

Defendant

Ruling

1. This suit was instituted by the plaintiff, Vapco Construction Company Ltd, vide the plaint dated February 23, 2021. The plaintiff’s cause of action against the defendant, Sheheena Enterprises Limited, was premised on an agreement dated August 1, 2014 for the construction of a 22 storey building both for commercial and residential use at Plot No 20250 (Original Nos 5062 and 12788) Section I Mainland North in Nyali area of the County of Mombasa.

2. The plaintiff contended that, although it commenced the works from September 1, 2014 as agreed, the defendant thereafter failed to honour payments to the tune of Kshs 285,537,281. 12, inclusive of retention charges. Accordingly, the plaintiff prayed for judgment against the defendant for payment of Kshs 285,537,281. 12, being the value of works undertaken by it for which payment had not been made; together with interest at commercial rates and costs of the suit.

3. Upon being served with summons to enter appearance and the plaint, the defendant filed not only its memorandum of appearance and statement of defence, but also a notice of preliminary objection dated April 19, 2021. In the notice of preliminary objection, the defendant contended that:(a)The plaint as filed is fatally and incurably defective in law and as such cannot stand or be ventilated before the court;(b)The plaintiff’s suit offends the mandatory procedure as provided for under order 3 rule 2(c) of the Civil Procedure Rules;(c)The plaint has not been filed or served along with the witness statement of the architects and the quantity surveyor, despite the two been cited as witnesses;(d)The plaintiff’s actions offend the provisions of section 1A(3) of the Civil Procedure Act, chapter 21 of the Laws of Kenya.(e)Allowing the pleadings as filed in the plaint defeats the defendant’s rights to raise and file a conclusive defence and exercise its rights to a fair trial as expected under section 1A(1) of the Civil Procedure Act.(f)That allowing the plaint as filed will prejudice the defendant’s right to a fair trial as envisaged under article 159(2)(a) of the Constitution of Kenya.(g)That the court is vested with the jurisdiction to strike out the plaintiff’s suit by virtue of order 2 rule 15 of the Civil Procedure Rules.(h)The suit is frivolous and vexatious and to allow it would be tantamount to allowing an abuse of the court process and the principle objective of the court as provided for by section 1B(1)(a) and (b) of the Civil Procedure Act.

4. Accordingly, the defendant prayed that the plaintiff’s suit be struck out and that the costs thereof be awarded to it.

5. The preliminary objection was urged by way of written submissions, pursuant to the directions issued herein on November 4, 2021. Accordingly,Mr Khagram, learned counsel for the defendant, filed his written submissions on December 29, 2021, relying principally on article 50(1) of the Constitution of Kenya, order 3 rule 2(c) of the Civil Procedure Rules and Mukisa Biscuits Manufacturing Company Ltd v West End Distributors [1969] EA 696. Counsel urged the view that, for there to be a fair hearing in this matter, full disclosure of facts was obligatory. In particular, the defendant took issue with the failure by the plaintiff to file the statements of the architect and the quantity surveyor along with the other statements and documents filed pursuant to order 3 rule 2(c) of the Civil Procedure Act.

6. To underscore the need to follow the laid down procedures, thus eschewing trial by ambush, counsel for the defendant relied on Moses Mwicigi & 14 Others v IEBC & Others [2016] eKLR; Board v Thomas Hedly & Co [1951] 2 All E R 431 and Davis v Eli Lilly & Co [1987] 1 WLR 1136 as discussed in Barclays Bank of Kenya Limited v Christopher Orina Kenyariri & Another [2017] eKLR. Counsel added that quotations received from independent surveyors and architects to re-evaluate the work carried out on the subject building have been exceedingly high, and that being forced to contract the same will unreasonably raise the defendant’s litigation costs; thereby contravening the provisions of section 1B(1)(d) of the Civil Procedure Act. He therefore urged for the striking out of the suit with costs at this stage of the proceedings, convinced that the preliminary objection raises a pure point of law whose determination should have the effect of terminating the suit.

7. On behalf of the plaintiff,Mr Gathu relied on their written submissions filed on February 3, 2022. In his view, it is the defendant’s preliminary objection that is frivolous and a waste of time. He reiterated the stance that the claim is one by a contractor for substantial amount of money for works already undertaken and certified due. He urged the court to note that the preliminary objection has nothing to do with the jurisdiction of the Court and, is not in the nature of a demurrer as recognized in law. Counsel relied on Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR and Eunice Karim Kibunja v Mwirigi M’Ringera Kibunja [1966] eKLR for the proposition that it is improper for a party to resort to a preliminary objection as a sword for winning a case otherwise destined to be resolved judicially and on the merits.

8. Further to the foregoing, Mr Gathu submitted that, in any case, the complaint about the plaintiff’s failure to file the architect’s and the quantity surveyor’s witness statements is fallacious, granted the exception contained in order 3 rule 2(c) of the Civil Procedure Rules. In his view, these are expert witnesses whose statements are excepted by dint of the above-mentioned provision. Thus, he concluded his submissions by stating that, whilst the court has jurisdiction to strike out pleadings under order 2 rule 15 of the Civil Procedure Rules, the circumstances hereof do not warrant such a draconian step. He urged the court to do real justice between the opposing parties by dismissing the preliminary objection with costs, to pave way for this matter to proceed to its logical conclusion.

9. I have given due consideration to the grounds set out in the defendant’s preliminary objection in the light of the pleadings filed herein. I have likewise considered the written submissions filed by learned counsel for and on behalf of the parties. The single issue for determination is, whether the defendant’s preliminary objection dated April 19, 2021 is tenable.

10. Needless to mention that a preliminary objection comprises a point of law which, if argued as such on the basis of the parties’ pleadings, is capable of disposing of the suit. In Mukisa Biscuit Manufacturing Co Ltd v West End Distributors [1969] EA 696, it was stated: -“…a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration…a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion…”.

11. Likewise, in Nitin Properties Ltd v Singh Kalsi & another [1995] eKLR the Court of Appeal made the point that: -“...A preliminary objection raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion...”

12. It is plain, then, that any reference to order 2 rule 15 of the Civil Procedure Rules, as was done herein by counsel for the defendant, would be improper for it presupposes that a party approaching the court on the ground that the suit is frivolous or vexatious, does so on the basis of facts, either as admitted or as deposed to by way of an affidavit. Thus, the only valid ground raised in the defendant’s notice of preliminary objection dated April 19, 2022 is the question whether failure by the plaintiff to file the witness statements of the architect and the quantity surveyor amounts to a breach of order 3 rule 2(c) of theCivil Procedure Rules; and if so, whether such breach is fatal to the plaintiff’s suit.

13. No doubt, the defendant, indeed both parties to this controversy, have a constitutional right to fair hearing as enshrined in article 50(1) of the Constitution of Kenya. It is to that end that order 3 rule 2 of the Civil Procedure Rules, requires pre-trial disclosure. It states: -All suits filed under rule 1(1) including suits against the government, except small claims, shall be accompanied by—a.the affidavit referred to under order 4 rule1(2);b.a list of witnesses to be called at the trial;c.written statements signed by the witnesses excluding expert witnesses; andd.copies of documents to be relied on at the trial including a demand letter before action:Provided that statement under sub rule (c) may with leave of court be furnished at least fifteen days prior to the trial conference under order 11.

14. It is plain then that, although it is obligatory for parties to file their witness statements together with their pleadings, if a party is unable comply in the first instance, the same can be done with leave of the court at least fifteen days prior to the pre-trial conference. That being the case, non-compliance by the plaintiff herein is hardly a valid reason for striking out the suit. Indeed, in The Co-operative Merchant Bank Ltd v George Fredrick Wekesa Civil Appeal No 54 of 1999 the Court of Appeal held that: -“…Striking out a pleading is a draconian act, which may only be resorted to, in plain cases...Whether or not a case is plain is a matter of fact...Since oral evidence would be necessary to disprove what either of the parties says, the appellant’s defence cannot be said to present a plain case of a frivolous, scandalous, vexatious defence, or one likely to prejudice, embarrass or delay the expeditious disposal of the respondent’s action or which is otherwise an abuse of the process of the court.

15. The same position was reiterated by the Court of Appeal in Yaya Towers Limited v Trade Bank Limited (In Liquidation) [2000] eKLR thus: -“…A plaintiff is entitled to pursue a claim in our courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff’s claim is bound to fail or is otherwise objectionable as an abuse of the process of the court, it must be allowed to proceed to trial.

16. Secondly, it is the plaintiff’s contention, which I am in agreement with, that the architect and the quantity surveyor fall under the category of expert witness. That being the case, order 3 rule 2(c) of the Civil Procedure Rules is explicit that statements of expert witnesses are exempt from the requirements of that rule. Hence to seek the striking out an entire suit, as the defendant has done, on the sole ground that an expert witness’ statement was not filed with the plaint, does not accord well with the aforestated provision. Moreover, if indeed the information provided was not sufficient to enable the defendant file a comprehensive defence, as submitted by counsel, then recourse ought to have been had to the procedure set out in order 2 rule 10 of the Civil Procedure Rules.

17. In sum, it is my finding that the defendant’s preliminary objection lacks merit. It is hereby dismissed with costs.

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF DECEMBER 2022. OLGA SEWEJUDGE